EU court upholds national immigration laws

The European Union’s highest court today (12 March) rebuffed attempts by Dutch nationals to use EU freedom of movement law to overrule national immigration decisions that prevented their non-EU spouses from residing with them in the Netherlands.

In all three cases, the Dutch authorities had refused to allow persons from Morocco, Nigeria and Peru to reside in the Netherlands with their Dutch spouses. The latter argued that they had exercised their EU rights to move and work in the EU and thus EU law, which gives family members of EU citizens a right of residence, trumped Dutch immigration law.

But the ECJ indicated, in an opinion issued to the national court that will rule on the facts, that the Dutch nationals were unlikely to be able to invoke EU rights.

Two of the cases involved Dutch girls who had moved to Belgium and Spain to live with their Moroccan and Nigerian husbands, respectively, where the latter were temporarily residing. After failing to find work, both Dutch girls returned to the Netherlands but made frequent trips to visit their husbands.

The ECJ held that EU citizens should not be discouraged from moving between EU member states by the prospect of their family not being able to follow them.

But it was not sufficient, the court ruled, for the Dutch girls to have made regular trips to visit their spouses in another EU country for the couple to be considered a family under EU law. The couples needed to show that they had “settled and, therefore, genuinely resided” in an EU country to be able to derive residence rights from EU law, the court held.

In the third case, a Dutch citizen was married with a child to a Peruvian woman, to whom the Dutch authorities refused a right of residence. The Dutch national claimed that her right to reside in the Netherlands was protected by EU law, since he commuted each day to work in Belgium.

The ECJ recognised that the Dutch national, by living in one EU member state and working in another, was exercising his freedom of movement under the EU treaties and thus could claim certain rights under EU law. But EU law could trump Dutch immigration law, only if the refusal to grant residence to the Dutchman’s wife would discourage him from exercising his EU treaty right to work in another EU country.